Slam Dunk Win for NBA Video Game Accused of Tattoo Copyright Infringement

“I acquired a weakness over the weekend for a guy with a gold tattoo.” “New Tattoo” music and lyrics by Ana Egge and Maryann Kranis

Norwegian teen tattoos McDonald's receipt on his arm, confirms Big ...

It’s a generational thing, I know, but I just don’t get tattoos. Back in the day, they were associated with grifters, carnies, and drunken sailors. Popeye had one on his forearm. Mighty Mouse did not.

Recently, however, I got an anthropology lesson on tattoos and their cultural significance. I learned that “tattoos have been part of human expression for thousands of years,” and that “modern tattoos reflect the personal expression of the person bearing the tattoo and are intended for that purpose.”

That lesson came not from a book or article, but from expert testimony in a court decision involving the tattoos of none other than LeBron James. The issue was whether the maker of the video game NBA 2K infringed the copyrights in the tattoos of Mr. James and two other NBA stars when the the trio were included as video game figures, in NBA 2K, tattoos and all.

First, some basics. Yes, tattoos are pictorial works subject to copyright. And yes, absent a written agreement between the tattoo artist and the client, the artist owns the tattoo copyright, which gives the artist the right to control when and how the tattoo is reproduced. So in theory, including Mr. James’s likeness with his tattoos could implicate the tattoo artist’s copyright.

In this case, the artist had granted an exclusive license to the copyright to the plaintiff, a company formed primarily to enforce the copyright against the video game company and others who similarly included likenesses of tattooed stars in commercial products such as video games.

The court of law in this case took a very dim view of the plaintiff’s efforts to profit from the tattoos’ presence in a virtual court of basketball. In fact, the judge agreed with all of defenses:

First, U.S. District Judge Laura Taylor Swain ruled that there was no copyright infringement because the tattoos in question were not “substantially similar” to the copyrighted tattoos. The virtual tattoos were a fraction of the actual tattoos in size and were barely visible, appearing only fleetingly on moving figures who themselves were part of a larger group of moving figures in the video game as its being played.

Second, the court ruled that the artists had granted LeBron and the others implied licenses to allow the tattoos to be publicly displayed, including in video games. “The tattooists necessarily granted the players nonexclusive licenses to use the tattoos as part of their likenesses,” Judge Swain wrote. “The players, who were neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies, had implied licenses to use the tattoos as elements of their likenesses.”

Finally, Judge Swain concluded that including the tattoos in the virtual likenesses of LeBron and others was “fair use.” She concluded the company had made a “transformative use” of the tattoos, noting: “The tattoos were originally created as a means for the players to express themselves through body art,” Judge Swain wrote. “Defendants reproduced the tattoos in the video game in order to most accurately depict the players.”

Judge Swain was also swayed by a survey conducted by Dr. Deborah Jay that showed that consumers do not buy NBA 2K for the tattoos on LeBron James’s likeness.

The full court press of defenses thus produced a blowout win for NBA 2K and a stinging loss for the plaintiff.

As for me, I still may not totally get cultural phenomenon that is the modern tattoo. But guided by the expert testimony in this case about the history and significance of tattoos across the millennia, I can finally accept that my aversion and skepticism were narrow-minded, misguided, and worthy of an OK BOOMER retort.

The case is Solid Oak Sketches LLC v. Visual Concepts LLC et al., case number 1:16-cv-00724, in the U.S. District Court for the Southern District of New York.

QOUTE OF THE DAY: “Show me a man with a tattoo and I’ll show you a man with an interesting past.”
― Jack London

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